Friday, March 18, 2005

The Steroid Hearing

What Selig, Fehr, and Manfred Failed to Say

For most people the highlight of yesterday’s hearing before the House Government Reform Committee was mark McGwire’s non-denial, or the heart wrenching stories of the parents who’s sons committed suicide, or even the perceived weak penalties of baseball’s system and the threat of congressional action to bolster the testing regimen. To me, however, it was the lack of clarity and preparation by Commissioner Selig, Robert Manfred, and Donald Fehr. Those three were the most important witnesses of the day and without ever fully articulating their positions they were bullied and battered.

Having testified before a Senate committee and as a labor lawyer I was very disappointed that neither management nor the union was able to explain the history and the purpose of the bilateral process that led to the current testing system.

I understand that practitioners very frequently take a baseline understanding of their field for granted and I believe that is exactly what happened yesterday with Manfred and Fehr. Both practice labor law in a very insular arena. Unlike many union representatives Fehr never has to train his members and stewards on how to file a grievance on discipline or contract interpretation. His experience, at least while at the MLBPA has been to handle these things himself or with others who already know the basics. There is never a need to explain the basics to Manfred, across the table, or even an arbitrator deciding a disciplinary case. However, with Congress, a basic training is necessary to provide full clarity of both parties’ positions. And, in this case, it should be a shared position.

Without judging whether or not the policy is strong enough, one thing is clear: the policy and process to reach the policy was not properly explained or defended.

The most important issue that was left unexplained was the concept of progressive discipline. Rep. Christopher Shays (R-CT) was particularly concerned about this issue asking why players would get four outs prior to being expelled from baseball. While Fehr did state very clearly that progressive discipline is the union’s position, he did not explain the concept, nor did he explain why has been accepted in labor law for so long. Progressive discipline is based upon the concept that there are very few crimes that allow a death sentence. In common practice there is only first-degree murder, although treason, desertion, and other crimes against the military and national interest can also result in a death penalty sentence. In the workplace the same concept exists. There are some offenses that result in summary dismissal. Those offenses vary from workplace to workplace, but violence in the workplace is generally accepted as grounds for dismissal in all workplaces. So is theft. But, the discipline should fit both the nature and seriousness of the offense. When an offense does not warrant dismissal, progressive discipline benefits both the employee and the employer. Why would an employer desire to recruit a new employee, train that employee, and go allow that employee through the learning curve of the workplace if the disciplined employee is capable of rehabilitation and already has the skills, ability, and knowledge to perform the job? Surely once the employee has shown productivity it benefits both parties to penalize the employee with an appropriate penalty so that the employee can learn from his mistake and so that other employees can learn from it as well.

Another topic that created a left a lot unanswered was the question of criminal penalties for breaking the law. Rep. Elijah Cummings (D-MD) raised the issue that many in his district would be very happy if all they received for a drug conviction was a 10-day or 15-day suspension from employment. Neither Fehr nor Manfred explained that baseball did not have the authority to impose criminal sanctions. The internal baseball penalties are only administrative. Players are still subject to criminal prosecution for possession, use, and distribution like any other person in the U.S. But, just like other employers, testing positive in a baseball drug test does not lead the employer to turn over the medical records to prosecutors. However, as Selig stated, if a player were distributing drugs in the locker room, that information would be passed along to authorities. Fehr and Manfred also failed to explain that in order to sustain a disciplinary penalty the employer also has to prove a causal nexus between the offense and the employee’s job. While that is true for steroids, it is not true for recreational drugs. Only safety and drug enforcement positions really have a causal nexus between the employee’s job and recreational drug use. You do not want the pilot of your airplane using drugs, but do you really care if the cook at your diner smoked marijuana? If it doesn’t directly relate to the employee’s job it should not result in discipline.

Bud Selig was thrown a softball on the gambling question, but failed on that issue as well. Rob Neyer wrote a great piece on this topic some time ago and said it better than I could. Most importantly the belief is that steroids enhance a player’s ability to play well. This means that he is trying to win. Gambling, though, throws the entire competition into doubt, because a player does not bet on his team to win ever game, furthermore, even if he did bet to win every game, debts to bookmakers would bring at least the appearance of a conflict of interest if not an actual conflict of interest.

Another topic that was mangled by the panel was the fact that this is a mandatory subject of bargaining. That means that despite what the politicos would desire, baseball cannot unilaterally change the work rules without negotiating with the union. Such a change would result in a violation of the law: an unfair labor practice. Several of the Committee members basically seemed to be asking baseball to break the law.

Finally, there is the issue of a trickle down to high school athletes. Nobody explained that testing Major League Baseball players and applying more stringent penalties will not change usage in high school sports. Olympic athletes have the toughest testing rules, they are role models, yet that has had no impact. Neither have the testing rules in football. Only testing high school athletes will change the usage rate in high schools. Congress can do that through an unfunded mandate on the states, something that will no doubt eliminate high school sports entirely.

The final panel, which had the opportunity to explain the current policy with the most details and context, failed to accomplish its goals. Whether the panelists were unprepared or not does not seem in question. They were not. All of the questions could have been anticipated and should have been. Their staffs should have helped them develop reasoned, rational responses, so that they wouldn’t have been beaten up as badly as they were.

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Wonderfully well said. Additionally, progressive discipline mitigates the negative effects of false positives. Any testing system may incorrectly identify a player as a 'user' as a result of either a poor assay or player use of a seemingly benign substance (e.g. olympic athletes and Sudafed do not mix.)

Hey, I'm all for a system of "progressive" discipline, basically because I believe people do deserve a second (or third) chance, but why does the "progression" have to be so slow. Four strikes and then you're out on the fifth failure? Three strikes and then you're out? These systems seem so lenient that they might not provide the strong deterrent that is needed. How about allowing just one or two failed drug tests before drumming someone out of the game?

These systems seem so lenient that they might not provide the strong deterrent that is needed. How about allowing just one or two failed drug tests before drumming someone out of the game?

In part, to mitigate the concern about false positives that Nick S addressed in post 1, and in part (I'm sure) to overcome the MLBPA's objections to "any" disciplinary program. I don't doubt that MLB proposed a stronger disciplias good as MLB could do under the circumstances.

Damn, that's what happens when I post from my laptop without previewing - this mouse sux.

I don't doubt that MLB proposed a stronger disciplinary program, and that it was negotiated down to what's in place. I think that the program in place is about as good as MLB could do under the circumstances.

I also don't think that a "strong deterrent" is required. There are (IMO) very few players who fall into the category where the nature and extent of the deterrent is going to make a difference. You'll have a (IMO relatively small) group of players who will continue to use regardless of "what" deterrent is in place, trusting their handlers to figure out ways around them (as happens in the NFL and T&F), you'll have a larger group of players who won't use under any circumstances, and you'll now have a decent-sized group of players who might have considered using if there were no penalty but who won't take the risk now that there is a penalty.

Rep. Elijah Cummings (D-MD) raised the issue that many in his district would be very happy if all they received for a drug conviction was a 10-day or 15-day suspension from employment. Neither Fehr nor Manfred explained that baseball did not have the authority to impose criminal sanctions.

Much as I am not a fan of Fehr, he did produce a sort of stunned silence from the committee at one point when he said something to the effect that if the player was in possession of illegal drugs he would be in prison so the suspension issue would be moot.

My assessment was that in the first and third panels the congressmen were at their grandstanding best. When the players were on they seemed to lose their nerve. I felt sorry for Dr. Pellman trying to stop the mob mentality that overtook the first panel.

Kevin, the cook-the-books scenario is analogous to gambling on baseball, not steroids. Each action casts doubt on the predictive power of what should be pertinent information (The outcome of this baseball game is in doubt, therefore it is exciting to watch. This company's business model works well, therefore I should invest. As opposed to: These players are not on steroids, therfore each is performing within the confines of his natural ability) Steroids is more comparable to a business selling a deceptively crappy product; as long as the public is unaware that the product is crappy, sales will remain high.

I know people who have been summarily fired for having affairs with co-workers.

Most people are employed under a system called "employment at will." This means that you start each day and end each day at your own will as well as at your employers. There is no employment contract. Union employees are all covered by a collective bargaining agreement which sets out the working conditions including the standard of proof in termination cases. Unless you have a collective bargaining agreement or an individual employment contract you can be terminated for a good reason, a bad reason, or no reason at all, at any time. That's the basis for employment at will.

what about an accountant that is caught cooking the books to make the company more appealing to investors? Is that grounds for summary dismissal?

I think it is, even though what he is doing is trying to "win".

Most companies have outside accountants handle their books, see Arthur Andersen. Those accountants are contractors not employees, so a comparison to an employment situation is not relevant.

For in-house accountants-they are employees. However, even if they prepare the initial documents, and independent auditor from outside is necessary for SEC filings if I recall correctly. I don't practice securities law so I may not be completely accurate. Generally, in-house accountants would be liable for their misrepresentations, but so would the CFO and CEO due to respondeat superior. Furthermore, such situations are usually due to an internal company conspiracy and everyone is implicated once criminal investigations are set in motion.

Baseball (management, owners) doesn't want to ban anybody who puts butts in the seats. Cover up the situation as best as possible. Cocaine trafficking in the Pittsburgh clubhouse in the late seventies? Covered up. Swept under the rug. Ultimately forgotten. Nobody had to be banned for life. Perfect.

WADA also har progressive punishment, at first you get 2 years and the second time it's life.

The MLB policy is not progressive, it's a total sham. How the hell could you actually fail five tests? That's simply ludicrous. Better to just name and shame the players so the hecklers could have some fun.

A real anti-steroid policy should use at least a season-long suspension for starters.

And false positives is handled very well with 'A' and 'B' tests. No use in handwringing over them.

The difference between the Olympic system and any other system is the that there is no employment relationship in the Olympics. Furthermore, I think the BALCO trial and Victor Conte's statements have shown that the Olympic systems is not the panacea that everyone seems to think it is.

I would prefer if people did not turn this into a value judgement on the current system. I specifically chose not to do so in the column. Rather I was trying to point out the problems with the testimony from a legal and strategic standpoint and clarfiy certain things that were not said.

Well, there isn't an employee relationship between the MLB and the players either. I really find it hard to believe that you can set up an effective steroid policy like this which can't mete out any real punishment in any case whatsoever. No person in the world has failed five steroid tests, ever.

It seems obvious to me that no side of this agreement wanted any pain from the consequences of the policy. And hence my denounciation of the policy as a sham. Good article, though.

The players are employees of the indivdual teams. (Please don't make me explain what an employee is- just accept the fact that the players are and Olympic athletes are not) The MLBPA is the exclusive representative of the players in a multi-employer bargaining unit for all players under Major League contract with the 30 teams and any successor teams. Therefore, for all intents and purposes under labor law MLB is the Employer since each individual team has opted into the employer association. See Buffalo Linen, 353 U.S. 87 (1957) and Bonanno Linen 454 U.S. 404 (1982).

If not for a union, no sports league would be able to enforce a drug testing policy on its players, however individual teams would be able to. Because, the employer association would constitute a violation of the anti-trust laws. Similar to the Freeman McNeil case in football after the NFLPA was decertified, the NFL's rules against free agency were struck down by the courts. Individual teams would have that authority, but not the league as a collective. Baseball, even with the anti-trust exemption, would have a questionable argument in light of the Curt Flood Act as it relates to the limited elimination of the anti-trust exemption for labor relations.

Thank you for your informed look at the Congressional hearings yesterday. I am a university student currently in an industrial relations class. Following these proceedings has been informative and intriguing. I found the comments made by the congressmen lacking a basic understanding of a unionized environment. Basic collective bargining principles were lost on them. The comparisons to the Olympics were comical based on the fact that none of those athletes are unionzed. The repeated questioning of the strength of the policy lacked the basic understanding that MLBPA had no obligation to revise the policy. Since the CBA was in place, they were under no legal pressure to create a new policy. They were in a very weak bargining position and their desire to still make changes is admirable. I think cooperation such as this in the future could be beneficial to MLBPA and MLB.

The comments from some of the congressmen concerning the language of the policy were also ill-informed. The inability for them to realize that the commissionor would never pick a $10,000 fine over a 10 day suspension is curious. I also enjoyed the comments by Robert Manfred defending the policy.

You're entitled to find it what you want, obviously. The language as written, you read it to suggest the player gets to pick if he gets a fine or suspension. The agreement, even as written, however critical you want to be ... you're misreading the contract. Who would read an agreement where the player gets to pick the discipline?

I also enjoyed how another congressmen compared the $10,000 fine to a $25 slap on the wrist if it a $10 million player was compared to a truck driver. What he failed to realize is that if a player was suspended for 10 days, the lost wages would be upwards of $600,000. I agree with you that Congress was poorly prepared and rarely seemed to know what they were talking about.

On the other hand, MLBPA and MLB did a poor job of presenting their case. Fehr's comments about his responsibility to his constituents were valid. It seemed that the congressmen should have understood this point because this is what they should be doing everyday. I think both sides standing by the policy was a positive sign. Since this agreement was bargined in good faith, I think they should be able to try it out. If steroid use has droped to 1.7%, this program could very likely wipe the problem out. That percentage only repersents a handfull of players.

One last point was the discussion by one of the congressmen of the choices that MLB had left Congress. He said that they would either enact legislation to ammend the policy for MLB or revise the labor laws to place drug testing in collective bargining agreements under federal jurisdiction. The thought that they would even think about doing that is humerous. I am sure none of the other unions or millions of union members would care much if the govenment took control of drug testing because 12 baseball players tested positive.

In closing Mr. Freedman, I have enjoyed reading your article as well as your responses on this post. If you have any other articles on MLB labor relations, I would enjoy reading them. Thanks for being a beacon of light in the darkness of confussion around this subject.

Basic collective bargining principles were lost on them. The comparisons to the Olympics were comical based on the fact that none of those athletes are unionzed.

I'm not sure this is universally true. I know in women's soccer right now, the national team is negotiating with some organization representing the players over the next contract. In women's soccer, the national team (World Cup) and the Olympic team are the same players, but perhaps not part of the same negotiating process.

The MLB policy is not progressive, it's a total sham. How the hell could you actually fail five tests? That's simply ludicrous. Better to just name and shame the players so the hecklers could have some fun.

I may be mistaken, but I believe Steve Howe failed five drug tests and it was public knowledge. Off course, he was lefthanded.

Although I don't know about the U.S. National Team, I am sure about the Olympic team. There is no employment relationship. All players are effectively volunteers and do not work for the USOC.

I didn't hear about an NLRB election for the women of the U.S. National Team so I doubt that they are actually unionized even if there is a traditional employee/Employer relationship. It may be negotiations over individual player rights to wear certain clothing/shoes, much like U.S. Basketball.

MLB didn't strike a hard enough bargain on the progressive suspensions. Once the novelty wears off and steroids lose the "name and shame" aspect, a two week suspension of even a star player doesn't affect a team's season enough. Having a player test positive should be more akin to having him on the 60 day DL than the 15 day DL.

There has to be more than a simple crime and punishment approach for a steroids testing program to work. It has to hit both supply and demand. That means suspensions have to be long enough to hurt a team in the standings.

what is to stop a subpoenaed person from pretty much calling congress out on their wrong or misleading statements during the hearings? for example, with bunning, the greenies and amphetamines being around...and the similar increase in the "clean" nfl by weight %, and that of baseball?

can the congresscritters seriously do anything with a knowledgable person on the other side who wants to critique them?

i'm just curious because usually, the people i see up there are pleading the fifth which doesn't lead to specific criticisms.

I think the observations listed above about the steroids hearings are very astute. Steroids have no place in sports. They are dangerous to the athletes. I've been hearing arguments on sports radio stations, however, that miss the point about why the hearing needed to take place, if in fact it did. I apologize at the outset for the length of this piece, but this has been gnawing at me for a while, and this seems to be the right forum for this.

Two arguments about steroid use come up over and over again:

1. The records set are meaningless, and need asterisks beside them.

2. They cheated.

First, regarding the records, I have one word: Nonsense.

Baseball fans and historians alike are very practiced at comparing records of different eras. Otherwise, how do you compare Randy Johnson to Walter Johnson? Does Walter Johnson require an asterisk because he pitched in the dead ball era? Does Bob Gibson or Sandy Koufax need an asterisk because the strike zone was bigger and the mound was higher when they put up their numbers? No. We simply adjust when we compare and contrast.

Second, that they cheated:

Yes they did, but that's not what's wrong with steroid use. Cheating has been prevelant in baseball since John McGraw held belt loops of baserunners on 3rd base, and since runners would cut third on the way home while the umpire was looking the other way.

People bemoan the lack of a level playing field, but the only people who want a level playing field are those who don't have one. And as soon as they get the field leveled, they work diligently to figure out how to tilt it their way.

Everybody wants an "edge." Tony Robbins even has a tape set out called "Get the Edge." Bobby Valentine had a show on WFAN here in New York, where he talked about how everyone wants an edge, and how the top performance-enhancing drug in use in America today is perfectly legal -- and called "Viagra." Players have been using "greenies," which are amphetamines, for years.

Jim Bouton documented this in "Ball Four," his diary of the 1969 season. Once when Bouton's Astros were playing the Reds, Pete Rose was in the outfield. He dove for a ball, short-hopped it, rolled over and fired it into the infield. One of Bouton's teammates in the bullpen commented, "Another five milligrams and he would have had it." Bouton also wrote that if you told a pitcher that if he took a drug he would win 20 games but that it would take ten years from his life, he would probably do it.

Cheating has always been part of the game, because players all want the edge. Mike Greenwell wants Jose Canseco's MVP award because he said that Canseco cheated. But who is going to claim Mike Scott's Cy Young Award? Scott cheated in 1986. He scuffed the baseball. Who is going to claim Gaylord Perry's Cy Young Award from 1972. He threw the spitter, and everyone knew it. Whitey Ford scuffed the ball, too.

No, cheating is not the reason that steroids are bad for baseball. Players will always find ways to cheat, whether from corking bats or doctoring baseballs.

The real reason steroids are dangerous and should be banned is the reason Canseco lists in his book.

He writes:

"Why did I take steroids? The answer is simple. Because, myself and others had no choice if we wanted to continue playing. Because MLB did nothing to take it out of the sport. As a result, no one truly knew who was on muscle enhancing drugs. As a result, a player who wanted to continue to play, to perform as a star, was forced to put into their bodies whatever they could just to compete at the same level as those around them...."

So this is the tragedy of steroids. Not that it dilutes records, not that it's cheating, but that athletes and athlete wannabe's believed that they had to ingest or inject dangerous and potentially life-threatening substances into their bodies just to keep the field level, because they thought anyone or everyone was doing it too. And if one professional athlete, or one college player, or one high school student -- just one -- felt compelled to endanger his (or her) life in order to play a game, that's a tragedy of Greek proportions.

1. While I agree in principle with not rewriting the record books on someone who's retired, I like the approach the Olympic sports take - test positive once, all your records are erased even if you achieved them years earlier. This would be a huge deterrent to using them to prolong your career.

2. I agree completely though is that the biggest problem is that there are players who are not using performance-enhancing drugs who would be major leaguers if others were not using drugs as well. This has to be an inordinate amount of pressure when you've spent such a significant percentage of your life building towards a goal - especially if you have no other skills with which you could actually support yourself if you don't reach that goal. While the US would never do testing on the high school level, it is done to some extent (I'm not sure how much) at the top college levels. Baseball also should be able to require players be tested before the draft - I don't think that has to be collectively bargained since players are not yet in the union at that point although I'm not sure on this one.

3. If home runs drive people to the ballparks (and significant revenues with them) and steroid usage allows players to hit more home runs, then isn't it true that MLB is benefitting from illegal activity? By not aggressively trying to stop the activity, they are the recipients of major "ill-gotten gains". I'm a long long long way from a legal expert, but couldn't the government theoretically bring them up on RICO charges for this and take everything?

4. It would be interesting to try and put a price on just what value players get from taking steroids. Just looking at what it did for Canseco and Giambi, you'd have to say folks would think it a risk worth taking...

Thanks (and apologies for using this in a manner most definitely not intended) to Baseball Reference on this one:

Player/Player most similar by age (and era) before alleged steroid usage/Player similar by age (and from same era) after/Total salary difference/Comments

Jose Canseco/Ozzie Canseco/Juan Gonzalez/$44-45 million
The "before" comparison player for Jose is tough since Jose used steroids his entire career. However, since he's got a twin brother who didn't make it, and since Jose told Mike Wallace he wouldn't have made it without steroids, the comparison is as good as I can do.

Jason Giambi/Marty Cordova/Tim Salmon>$100 million

5. One final thought... the players who say "we didn't know what harm it could do to us" in the late '80s and early '90's have got to be kidding. I was in high school in the late '80s and remember very vividly knowing what harm they could cause and knowing I would "Just Say No" if I was ever offered the opportunity for that very reason.

I agree completely though is that the biggest problem is that there are players who are not using performance-enhancing drugs who would be major leaguers if others were not using drugs as well.

With all do respect, I don't think that this is the biggest problem. The biggest problem is not about baseball, but about health.

As I said, the tragedy is not that players aren't making the majors who should, but that athletes and athlete-wannabe's are taking poisons into their bodies -- either because they want the "edge," or because they are concerned that if they don't, others will.

This is a health issue more than a baseball issue. And it's a health issue not just for the major leaguers but for all those who idolized the Bash Brothers et al, and want to be like them.

I too eagerly anticipated the final panel but had almost the opposite impression after watching it. I felt the the Congressmen looked unclear and unprepared and that Selig, Manfred and Fehr were to be commended for having to deal with ill-informed bullying.

I guess MLB is partially at fault for not having a final document ready but apparently Congress wanted MLB to conform to their schedule and not the one on which MLB was working.

However, the reason I felt that Congress looked unprepared is that they should have know what exactly was meant by progressive discipline. They should have know the difference between internal discipline and criminal sanctions. They should have know about the mandatory subject of bargining. They have aides and are on many other committees that deal with these issues as well as the drafting of the drug legislation itself. That the Congressmen were unclear on these issues made me question their preparedness as well as their qualification to be involved in drafting the laws in the first place.

A final point is that occassionally when Manfred, in particular, tried to give the lawyer's response he was told by Congressmen (I can think of specific example from Shays) that he didn't want to hear the lawyer answer.

One point that I also thought could have been made somewhere during the hearings is this: for many years, conventional wisdom held that lifting weights and becoming "musclebound" would not help a player excel at baseball. Naturally muscular players had obviously been part of the game, but the notion of hard-core weight-training was frowned upon. I think of Brian Downing as being one of the first baseball players to noticeably lift weights (and do steroids?) in the early 80's. The steroid idea seemed to gain some kind of critical mass (no pun intended) in Oakland with the Bash Brothers, but it wasn't until 1998 and McGwire's getting caught with Andro that the notion really stuck that a) Hey, these guys are definitely putting ilicit stuff in their bodies, and b) that the ilicit stuff definitely helps performance on the baseball diamond, in ways that are more dramatic than ever thought possible (70 home runs!).

Given the fact that baseball was facing a potential work stoppage in 2002, it's somewhat understandable why it took the sport several years to address the problem.

To me, it seems like any sort of historical perspective on steroid use in baseball has been lacking in the current discussion.